LEGAL EFFECTS OF MARRIAGE

The effects include;

a) That the parties acquire the status of being married – this means
therefore that parties are incapable of contracting another marriage
during the subsistence of this marriage and also, if you have sexual
intercourse outside the marriage you commit adultery.

ALAI V. UGANDA (1967) EA 596 It was stated inter alia that any
married woman in S.150 (a) of the P.C (as then) must mean any woman
who is married to any man irrespective of the form of such marriage

The most important point to note is that such marriage must have been
conducted in (other) forms of marriage recognized by the people of
Uganda.

The phrase ‘married woman’ is a term of art which confers on any

woman a specialized status in society as distinct from an unmarried
woman.

b) The fiction of one person/fusion.

At common law, one of the principles of marriage was that when the
parties get married, the personality of husband and wife were fused into
one. Hence, there could be no civil action between the spouse and
similarly the spouses could not be jointly charged as co-defendants or
plaintiffs.

This fiction/fusion isn’t a reality today as spouses can sue each other
or act independently especially with respect to property.

UGANDA V. KATO (1976) HCB 204

SESAWO V. UGANDA (1972) HCB 123

RAMSEY V. MARGARET(1894)4 QB 18

LILA THINA MANJI V. THE QUEEN (1956)23 EACA 609

c) The right of a wife to use the husband’s name. A wife can use her
husband’s name if she so wishes, but this isn’t obligatory.

FENDAL V. GODSMITH (1877) 2 P.D. 253

 It was stated that a marriage confers to a woman a name which
becomes her actual name. She is under no duty to do so. However, if
she so wishes, she may adapt it without swearing a deed poll.

A woman may also retain her former husband’s name after termination
of their marriage and the husband has no right to restrain her unless she
is using it for a fraudulent purpose.

COWLEY V. COWLEY (1900) P.305 – Court held that a man has no

such property in his name as to entitle him to prevent a woman not his
wife claiming to be such unless she does so maliciously.

In this case, the respondent sought an injunction to restrain his wife now
married to another from using his name acquired during the first
marriage.

d) Presumption of legitimacy of children

All children born during the subsisting marriage will be presumed to have
been fathered by the husband. The presumption can be rebbuted if one
shows overwhelming evidence to the contrary.

Exceptions.

i) Where the husband was temporarily or permanently impotent at

the time of conception.
ii) Absence by the husband for a considerably long time.

PRESTON JONES V. PRESTON JONES (1956) 1 ALLER 124

The husband had proved beyond doubt that a child born 366 days after
a particular coitus wasn’t his legitimate child, and the husband’s appeal
was allowed.

iii) Where it can be shown that the child was born after an abnormally
long period of divorce or death by the husband.

If a child is born after a decree of divorce, there is a presumption

that conception took place during the subsistence of the marriage
and the husband fathered the child.

KNOWLES V. KNOWLES (1961) P.305 - A child was born after

a decree was made absolute.
 According to the evidence adduced the child could have been
conceived before or after the decree was made absolute.

Court held that in June, the husband had had access to his wife
and that when the child was conceived the presumption of
legitimacy operated in favour of presuming that conception took
place while the marriage was still existing and the husband was
the father of child.

Re-OVERBURY (1955) CH.122

A child was born and conceived during subsistence of the

marriage. By the time of birth, the mother was already in a new
marriage. The question arose as to paternity of the child.

The Court decided the issue in favour of the first husband unless
evidence of adultery on the part of the woman is shown.

iv) If its shown that intercourse was so unlikely that it can be

concluded on a balance of probabilities that no intercourse took
place.

v) Where it is shown that the wife was adulterous – this does not per
se reverse the presumption, but only shows who may have
fathered the child.

vi) Where it is shown that the wife was pregnant at the time of the
marriage and the husband had not had sex with her.

No presumption arises where a child is conceived when the husband

and wife were judicially separated. This rule however, does not apply
where the parties simply enter into a separation agreement.

ETTENFIELD V. ETTENFIELD (1940)1 ALLER 293

- Where the parties are separated by court order and a child is born a
time which is consistent only with its having been conceived after the
order was made, there is a presumption that the child is not the
husband’s. In such a case “the wife may rebut this presumption if
she can, but must do it by evidence other than her own”

- Where the spouses have separated by consent, whether by deed or

otherwise; “the husband cannot give evidence of non-access, but he
can prove that fact by any means open to him other than his own
evidence. The presumption is that the child is legitimate. If the
 husband leads evidence to rebut that presumption, the wife can call,
but cannot herself give evidence in support of the child’s legitimacy”.

e) Conjugal rights/Consortium

Consortium means living together as husband and wife with all the
incidents that flow from that relationship. The right to consortium
embraces the right to companionship, love, comfort, affection, sexual
intercourse. However, the enjoyment of these rights may be qualified
depending on the circumstances.

A number of cases have held that both husband and wife have a right to
consortium and rights to each other and each of them have a right to an
action against any person who abuses that right without lawful course.

PLACE V. SEARLE (1932) 2 KB 497 – A husband claimed damages

against the defendant for enticing away his wife. SCRUTTON LJ
explained the basis of the action by the husband for damages for loss of
consortium. “the power to enforce by order money payments and the
fact that it is a matrimonial offence to desert, however that term may be
defined, rest upon existing rights of consortium both in the husband and
wife. There being such a right if follows, and it has been so decided in
numerous cases, that any person who without justification, interferes
with that right is liable to an action in tort”.

This right may also depend on the age of the couple, their health status,
social and financial standing. Refer to MORGAN V. MORGAN (1959) 1
ALLER 539 where an elderly couple married only for companionship.

While the parties have a right to live together it is not mandatory that
they should live together at all times. In circumstances of living apart,
they must show the intention of being married. The spouses cannot
contract themselves out of this duty for such agreements are considered
to be against public policy, and not enforceable.

BRODIE V. BRODIE (1917) P.271, where the document signed by

both parties before marriage that they would live apart. It was held to
be void as it was against public policy.

A spouse cannot however be compelled against his/her will to stay

together or to resume cohabitation.

AV V. CD (1955) 28 KLR 210 where the court held that the person
should not use force in order to exercise his or her conjugal rights. The
use of extra judicial means to exercise conjugal rights is prohibited.
LEE V. LEE – Divorce Case No.4 of 19

R V. JACKSON (1896) 1 QB 671 –

In this case, the husband obtained a decree nisi for restriction of
conjugal rights. The wife refused to comply and he then abducted her
and confined her in his house. Notwithstanding her refusal to live in the
same house, the court held that the husband was not entitled to keep
her in confinement and granted her an order of Habeas corpus to secure
her release.

NANDA V. NANDA (1967)3 ALLER 401 – the wife whose husband had
deserted her, obtained a decree for restitution of conjugal rights and she
later went to live against his will in a flat in which he was living with
another woman.

The court held that she had no right to trespass on her husband’s
property which wasn’t their matrimonial home and he was entitled to an
injunction to restrain her from his premises.

Where the spouse has unreasonably withdrawn from his/her conjugal

rights, the aggrieved party may under S.20 of the Divorce Act apply for
restitution of conjugal rights.

The withdrawal in the section must be unreasonable and the other party
must have no defence.

POWEL V. POWELL (1922) P 278 where the husband moved to a

self contained part of the house and denied his wife access thereto. The
parties were still under the same roof, but the husband avoided her
society and the only meeting was the morning greeting. Court ordered
for the restitution of conjugal rights.

ORME V. ORME 162 ER 355

There are certain circumstances where the right to

conjugation/consortium may be suspended.

1. Where there is judicial separation. i.e. where the court has issued an
order for the parties to live separately.

2. If there is a separation agreement. Where the parties have agreed to

live separately and have no sexual relationship.
3. Where one of the parties has committed a matrimonial offence, the
guilty party may be deprived consortium.

4. Where the courts have pronounced a decree nisi.

There is a duty of the parties to consummate the marriage and failure to
do so entitles the other party to seek annulment of the marriage unless
it can be shown that the marriage was approbated.

Under common law, it is presumed that consent to sexual intercourse

was given at the time of the marriage.

R V. MILLER (1954) 2 QB 282.

R V. CLARKE (1949) 2 ALLER 448 – the wife had obtained a

separation order containing a non-cohabitation order from the
Magistrate’s court. In those circumstances, it was decided he could be
charged with rape. Intercourse was revoked by a process of the law –
viz the court order.

R V. STEEL (1976) Craff Rep 22. The wife left home to live in a nurse’s
home because the marriage had failed. In proceedings commenced by
the wife, the husband undertook not to molest her and not approach or
enter the nurse’s home. The court held that there was no bar to the man
being convicted of rape albeit the conviction was quashed on other
grounds.

There is a cause of action against anyone who interferes with the

spouse’s right to consortium and this can be in three categories.

i) A person who entices the spouse to leave the marriage. Under

common law, there exists an action of enticement against
persons who entice spouses to leave the marriage.

PLACE V. SEARLE (1932)2 KB 497 - where it was held that a husband

has a right to consortium of his wife and vice versa; and each has a right
of action against a third party, who without justification destroys that
consortium.

In NEWTON V. HARDY (1933) 149 LT 165 – the court held that the
married woman has a right to consortium of her husband, and she can
recover damages from anyone who violates this right. However, for her
to do so, she has to prove that the co-defendant enticed her husband
and persuaded him to stop cohabiting with her.

Therefore, in an action of enticement, the following aspects must exist;

- The plaintiff must prove the intention by the defendant to induce the
other party to go away.
 - The defendant must have known that the enticed party was married.

- The plaintiff must prove that the defendant’s conduct was the cause
for the breakup of the relationship.

SMITH V KAYE (1904) 20 PLR 261 - the court said that the test is
whether the spouse would not have left the other spouse if it hadn’t been
for the action of the third party.

ii) Action of enticement against in law or relationships who may

interfere with the relationship of the maimed couple.

GOTTLIEB V. GLEISER - (1957) 3 ALLER 715 – Where the court

stated that there is no action of enticement against relatives unless you
can prove express malice to break up the marriage.

In this case, the husband proceeded against his mother and father-in-
law for enticing his wife. It was held that the actions could not be
maintained against parents-in-law.

iii) Negligent acts of third parties.

An action will lie against a third party who negligently and unlawfully causes
a temporary or permanent injury that impairs a spouse’s ability to
consortium.

Read . DONOGHUE V. STENSON - on the neighborly principle.

BEST V. SAMWEL (1952) 2 ALLER 394 - In the case of physical injury

negligently caused to the husband, there was a right of action for a wife who
suffered impairment of her right to her husband’ consortium by wrongful injury to
her husband which caused her husband to be sexually impotent. “ A wife is entitled
to enjoy the society, comfort and protection of her husband ……to be maintained
by him; and if another entices him from her so that she is bereaved of those
benefits, she is as much entitled to claim damages as is a husband whose wife is
for any reason, save humanity, abducted or persuaded to leave to leave his home”.

In BEST VS SAMWEL , the H.L B held that an action for loss of consortium – an
action available to a husband was not available to his wife.

MCNEIL V. JOHNSTONE (1958) 3 ALLER 17

AMOS SEYAMPANZA V A.G (1984) HCB 48 – where a husband sued for

damages for the death of his wife who had been knocked down by a
 government car. Court held that the spouse may recover damages from
anyone who does an act to his partner which deprives him or her of the
other’s s society and services. Hence, the plaintiff could recover damages
for loss of consortium.

f) RIGHT of domicile –

In the event of marriage, the wife acquires the domicile of the husband.

g) Right to a matrimonial home.

Under common law, the husband is seen ad a provider and is

expected to provide for a home for the wife and decided their
residence.

This has however changed today where women are also bread
winners.

Article 21 & 31 of the constitution also provide for the equality of the
parties during the marriage, and non-discrimination.

The parties are also expected to agree either before or after the
marriage as to where they will reside. If they fail to agree, neither of
them has the right to unilaterally decide where the couple should
reside, and if the matter comes to court, the court will consider a
couple of factors like who is the bread winner and also examine the
other party’s reasons.

MORGAN V. MORGAN (1959) 1 ALLER 539, DUNN V. DUNN

(1948)2 ALL ER 822

MADISON V. MADISON (1961) EA 185

It was stated that where court finds the parties unreasonable in their
decision, either of them may be held in dessertion of each other.

MAYAMBALA V. MAYAMBALA – Divorce Petition No.3/1993

KINTU V. KINTU - Divorce Case No.5/1975.

h) Right to maintenance

Under common law, a husband has the duty to maintain his wife and the
wife has a right to that maintenance. In practice, the wife’s right to
maintenance, depends on the husband’s continued enjoyment of
conjugal rights.

The right to maintenance includes the right to a house and to be

provided with necessaries of life.

Although the husband has a duty to provide his wife with a matrimonial
home, the wife has no right to insist on any particular matrimonial home
and the husband also has the right to live in that home.

And since the parties have a duty to live together in so far as conditions
permit, they cannot contract themselves out of this duty to live together
as was seen in

BRODIE V. BRODIE (1917) P.271.

In the case, an agreement was made before the marriage that the
parties will at all material times after the marriage live separately or
apart.

The agreement was held to be against public policy and that such
agreement wasn’t a defence to a petition for restitution of conjugal rights
by a spouse.

In STEWART V. STEWART (1947)2 ALL ER 813 , the subject matter

of the dispute was a flat owned by the husband who filed a petition for
divorce, and before the proceedings were concluded, the husband
applied for an eviction order against the wife to leave the flat and go to
accommodation he had provided elsewhere.

Although court was reluctant to terminate the right of occupancy of either

party, it granted the application holding inter alia that the right of one
spouse with regard to the matrimonial home had to depend on the
circumstances of each case.

In this particular case where the wife was at fault, it would be

unreasonable to insist on the wife remaining in cohabitation with the
husband.

Wife’s right to maintenance vis-à-vis third parties

Where a husband doesn’t provide the wife with maintenance, the wife
may exercise her right under the Disserted wife’s equity.
QN: However, does the wife’s right to maintenance and living in the
matrimonial home override the right of the husband’s creditors
over the matrimonial home?

At common law, the wife’s right to maintenance isn’t absolute and she
may not exercise it against people who have better claims e.g creditors
to whom the husband may have mortgaged the matrimonial home.

It is argued that wife’s right is only in personam and not a right in rem.
This was illustrated in NATIONAL PROVINCIAL BANK V.
AINSWORTH (1965) ALL ER 472, where the husband disserted the
wife and left her in the matrimonial house. He then conveyed the house
to a company in which he had a controlling interest. The house was
then mortgaged to a back for a loan.

The bank sought possession of the property and the wife contested this
on the grounds of her right to occupy the house under the Disserted
wife’s equity.

Court held that the bank was entitled to possession. That the wife’s right
to occupy the matrimonial home were personal rights against her
husband following from her status as a wife, and did not confer on her
any equitable interest nor could it override the bank’s interest.

In Uganda today, to cure the injustice of the common law position, S.39
of the Land Act prohibits any dealings in land where the family ordinarily
resides or from which the family derives livelihood unless express
consent of the wife and children.

However, if the third party had a fraudulent intent or wasn’t bonafide in

his dealings with the husband regarding the matrimonial home, then the
wife’s right to obtain the same is upheld.

Under common law, the wife can enforce her right to maintenance by
exercising her right as an agent of necessity.

NANYUKI TRADING STORES V. PETERSON (1948) 15 EACA 28.

The wife obtained liquor and groceries, when sued for payment, she
claimed she had pledged the husband’s credit for the goods as
necessaries.

Court held that the husband had provided her with such goods while
they lived together and so such she didn’t have to lower her status in
life. He was liable. This right arises in a situation where a husband fails
to provide his wife with necessaries. The wife is allowed to pledge (take
goods on credit from a trader), and the trader will be able to sue the
husband to claim.

Necessaries were defined in CALLOT V. NASH (1923) 39 TLR 292 that

these are articles which are reasonably needed and which are suitable
to a situation in life and a style of life fixed by the husband.

Such necessaries may include good shelter and clothing. The doctrine
of agency of necessity treats the wife as agent of the husband and the
husband as the principle.

The doctrine has sometimes been extended to be enjoyed by

mistresses, as discussed in MULLO V. EECHA (1815)27 DIG 205.
In Mullo a shopkeeper supplied goods to a mistress when she was still
living with a man and as well while they had separated.

Court held that the man was liable to pay for the goods when they were
living together but not when they had separated.

read BENNET VS. BENNET (1962) EA 507

ESIMAT V. ESIMAT – Divorce Case 1097 of 1988

KIRONDE V. KIRONDE D. C 6 of 2001

MUTALEMWA V. MUTALEMWA (1978) LRT 854

EDITH NAKIYINGI V (1978) HCB 107

Conditions to be satisfied for a wife to exercise husband’s credit/agency

of necessity

- It must be proved that the husband failed to supply his wife with
necessaries.

- The wife’s right to be maintained must still be subsisting. If the wife

is in dissertion, then the right is suspended.

WILLIAMS V. WILLIAMS (1976) Ch.278

Mullos case -

- The wife can’t exercise her right for items which aren’t necessaries
in her life.
 NANYUKI V. PETERSON – liquor and groceries – liquor was held to
be a necessary.

- The husband must not have prevented the wife from pledging to his
agency of necessity. Any measures to stop her from doing so will
only work if the husband supplied her with the necessaries for life.

- The trader/shopkeeper who supplied the goods must show that he

gave them to her as an agent of her husband and not in her own
individual right.

NANYUKI V. PETERSON –

- The wife obtain liquor and groceries from a shop and when sued for
payment, her defence was that she act with authority of her husband
and the goods were necessaries in life.

Court held that when he was living with her, the husband used to
supply her with liquor so she doesn’t need to lower her situation in
life hence he was liable to pay for it as a necessary.

i) Marital confidence

This is to protect spouses from disclosing matters which come to their

knowledge as a result of the marital relationship. In the law of Evidence,
the husband or wife are competent but not a compellable witness
against each other in a criminal matter.

UGANDA V KATO (1976) HCB 204 – the wife could testify against the
husband because the marriage didn’t conform to the customs, and the
couple despite having had children could not be regarded in law as
husband and wife.

SESAWO V UGANDA (1972) HCB 120

ARGYLL V ARGYLL (1965) 1 ALL ER 611 – Court granted an

injunction restraining the defendant who wanted to write articles on the
personal life of the plaintiff. The articles included information which had
come to his knowledge when the parties were still married.

Conclusion

The general rule is that many of the legal effects arise in all the types of
marriages.
Both Islam and Customary marriages recognize the status of being
married, the presumption on legitimacy of children, and also the
husband as the provider for the couple.

Marital property

At common law, property was generally owned by only the husband.

Today, the law generally allows husbands and wives to own property.
Property in marriage may have different dimensions.

There is property that may be acquired by the spouses jointly and for
joint use and other property may be acquired separately.

It may be property acquired separately but used jointly. Further, it may

also include property in which the title is vested in one party but the other
carries out improvements on that property.

It’s these various dimensions of property that have given rise to various
issues particularly on how such property may be shared when the two
parties want to separate or in case of divorce.

Originally, women couldn’t own property in their own right. They only
had factory rights and courts were strict against women in cases that
involved claims over marital property.

Even in cases in which it was clear that property vested in the woman,
it was very easy for the woman to forfeit it as stipulated in S.26 of the
Divorce Act. The Section provides that if divorce is due to the call of the
wife, her property may be settled off in favour of the husband or children
or both.

Today, the legal position that women can’t own property in their own
right has changed. They can acquire property irrespective of their
marital status.

Article 26 of the constitution states:

“Every person has the right to own property either individually or in

association with others”.

UGANDA V. KITANDA (1977) HCB 111

The High Court recognized that a woman regardless of her marital status
can own property in her own right.
MOONLIGHT SENGOOBA V. A.G HC Suit No.894/1973

The court held that the English Married Women’s Property Act (MWPA)
(1882) which allows women to own property in their own right was
applicable in Uganda.

N.B – Historically, the MWPA (1882) was of universal application. It

provided that any woman marrying after 1882 should be entitled to retain
all property rights owned by her at the time of the marriage as her
separate property. And that whenever she was married, any property
acquired by a married woman after 1882 should be held by her in the
same way.

READ – BROMLEY on Ownership of Marital Property

- S.4, 37, 39 of the Land Act –

The Land Act also recognizes ownership of property by women and

outlaws any decisions against women.

1 – Matrimonial/Marital homes

Several issues have arisen with regard to property vested in one party
but another carries out some improvements on it either by cash
payments/work done on that property. These issues have mainly arisen
as regards matrimonial homes.

The issues are whether such improvements when carried out, do give
rise to any interest in the property to the party making such
improvements.

The answer has depended on whether the improvements made were of

a substantial nature.

PETTIT V. PETTIT (1969) 2 ALL ER 385

The wife got a matrimonial home and registered it in her names. As a

result of doing some work on the home, the husband claimed that he
had upped the property value by over £ 1000. Most of the work done by
him consisted of redecoration of the bungalow, making the garden, a
wall and some work outside the home. No agreement as to the rights
was made. The two subsequently separated. The issue was whether
the Husband had acquired some interest in the property?

The House of Lords held that he had acquires nothing. He could claim
nothing on the grounds that he had acquired interest in the property
because the work he had done was of an ephemeran nature. It was a
do-it-yourself job which any husband could be expected to do in his
leisure time.

NICHOLSON (1974)2 ALL ER 386

The court held that the installation of a central heating system for £189
in premises worth £6000 was a substantial contribution.

EDITH NAKIYINGI (1978) HCB 107

In this case, the wife contributed to the building and maintenance of the
matrimonial home for 12 years. The husband in divorce proceedings
sought to evict her from the home.

Court held interalia; that the husband has a duty to provide the wife with
a home and if he wants to evict her, he must find alternative
accommodation, That since it is the husband who terminated the
marriage, in the ages of equity, he couldn’t chase the woman from the
house to which she substantially contributed.

Court explained that by merely spending money on another’s property,

it does not as a general rule give one any proprietary interests therein.

However, the doctrine of Equitable Estoppel subsists i.e if the owner

encourages the other to expend, he is estopped from denying his/her
proprietary interests so acquired.

Court further emphasized that where a matrimonial home is owned and

jointly held, even though one of the spouses makes substantial
improvements/contribution, the property is presumed to be owned
together. Hence, the house in this case was jointly owned and both
parties were trustees of the house and owned equal interest therein.
Court didn’t order the sale of the land and the house but held that the
wife had a right to remain there until she remarried or the husband found
her a reasonable alternative.

GISSING V. GISSING (1970) 2 ALL ER 780

The matrimonial home was bought and put in the husband’s name. The
wife paid for the furniture and household expenses. The issue was
whether or not the wife was entitled to the benefits of the Matrimonial
home.
In an action, court held that there was no common intention that the wife
should have any such interests in the home and no express agreement
to that effect.

The court further noted that where the contribution is indirect, it’s difficult
to determine how much was contributed. DENNING LJ in his disserting
opinion held that where a person makes a substantial contribution to
property, he/she should acquire interest there in especially women who
do a lot indirectly.

In Uganda, the indirect contribution made by the woman to an interest

in property was upheld in;

- KINTU V. KINTU

- KIBUITU V. KIBUITU – Civil Appeal 26/1985

It was held that a wife does contribute to the family in a thousand

other ways including child bearing, looking after the family; hence it
can’t be said that only monetary contributions should be taken into
account. Any such limitations could only work on injustice to
women.

In England, the law relating to interest acquired through

improvements affected by one spouse has been enshrined in the
Matrimonial Proceedings and Property Act 1970.

S.37 of that Act suggests that the contributions towards realty or

personality may be in money and money’s worth and if identifiable
and substantial improvements on the property, then the party
acquires an interest. This however, is subject to any agreement to
the contrary.

FALCONER V. FALCONER (1970) 2 ALL ER 440

Here, it was held that the presumption of advancement where the

husband made financial contributions to the house in the wife’s
name rarely applied n….to cases concerning beneficial ownership
of the matrimonial home and the principle applicable to whether the
matrimonial home standing in the name of the husband or wife
alone belonged to both (of them) jointly/in equal or unequal share;

“Where the law imputes to the husband or wife the intention to

create a trust for each other, by way of inference from the conduct
and surrounding circumstances, and inference of trust will be
readily drawn when each has made a financial contribution to the
purchase price/to the mortgage installments either directly or
indirectly as where both parties went out to work and one paid to
the house keeping and the other paid the mortgage installments”.

RE-EMERY’S INVESTMENT TRUST V. EMERY (1959) CH 410

TINKA V. TINKA (1970) P @ 136 OR (1970) ALL ER 542

In RE-EMERY’S TRUST, a husband who had transferred property

to the wife to gain revenue advantages premised upon her new
beneficial interest was precluded from averring in later proceedings
that his real intention was to retain the beneficial interest.

In GASCOIGNE V. GASCOIGNE (1918)1KB 223, it was held that

when a husband put in his wife’s name a house so as to avoid his
creditors taking it, the house belonged to the wife. The husband
could not be heard to say that it belonged to him because he could
not be allowed to take advantage of his dishonesty.

2) Household Property & Qn of gifts between spouse

It’s possible for one spouse to sell goods to the other and property
will pass. Gifts/goods are effectively sold or given by spouses to
each other if such act is accompanied with delivery of the property
and the title put into the possession of the recipient (buyer) spouse.

However, difficulty mostly arises because spouses rarely make

contracts for the gifts/goods that they give to each other. This is
because spouses will normally use the property together such that
an intention to make a gift can’t be readily inferred from the
permission to use the property in question. In this case, the burden
of proof on a spouse alledging a gift or transfer of property from the
other spouse is higher than that of a stranger.

Besides, it’s also quite difficult to prove delivery. However, these

difficulties arise with regard to goods which have already been used
by both spouses at home and will continue to be used even when
they are alleged to be given away as gifts.

Generally, there is a need for an effective symbolic delivery of one

chattel as representing the whole.

LOLKE V. HEATH (1892)8 T LR 295

However, courts are slow to infer delivery/transfer of Chattels from

one spouse to another. This is because of the danger that the
spouses may fraudulently alleged a prior gift of one’s goods to the
other in order to keep such goods out of the hands of the creditors.

In GASCOIGNE V. GASCOIGNE (1918)1 KB 223, it was held that

when a husband put a house in his wife’s name so as to avoid it
being taken by his creditors, the house belonged to the wife. The
husband could not be seen/heard to say it belonged to him
because he could not be allowed to take advantage of his
dishonesty.

Accordingly, such courts strictly require proof of an existing

transaction involving such gifts/property and insist on effective
delivery.

READ: GASCOIGNE V. GASCOIGNE (Supra)

Re- COLE (1963) 2 ALL ER 433/1964) CH.175

In RE-COLE, a husband said the words of gift to the wife, and the
issue was whether in the family context there was a valid gift.

The Appeal Court over turned the decision of the trial judge who
had held for the wife.

It was stated that there must be an actual delivery of the gift to the
donee. The court rejected the wife’s argument that her introduction
to the house was itself sufficient change of possession and the
words of gift were enough. The wife, according to the court failed
to prove actual or constructive delivery.

The case demonstrates that for a valid gift to stand, there must be
delivery and intention. The gift isn’t complete unless accompanied
by something which constitutes an act of delivery or a deed.

3. Bank Accounts

It follows that wives and husbands may own separate accounts.

It’s also possible that they may own joint accounts/pool from which
they deposit /withdraw money although not necessarily in the same
amounts. Hence, they both acquire a joint interest therein.

However, several issues may arise with regard to shares of this

interest particularly considering the fact that they may each make
different deposits and different withdrawals.

JONES V. MAYNARE (1951) 1 ALL ER 803

 The hubby authorized his wife to draw on his bank account which
was thereafter treated as a joint account. Further, into this account
was deposited dividends from both the wife and husband’s
investments.

The husband’s contribution was greater than his wife’s. The two
had not agreed on what their rights in this joint fund should be, but
they generally regarded the account as their joint savings to be
invested from time to time. The husband frequently withdrew
money from these funds and made investments in his own names.

Subsequently, the two separated and the husband closed the

account altogether. The marriage was dissolved and the wife sued
for half share of the account as it stood on the day it was closed,
and in the investments which the husband had previously
purchased out of it.

Court didn’t inquire into how much was deposited or withdrawn by

each party. It only held that the wife’s action would succeed for the
court looks at the intention of the parties to establish a joint
account.

BAISEY J observed;

“In my judgment, where there is a joint account between the

husband and the wife, a common pool into which they put all their
resources, it is not consistent with the conception that the account
could there after be pricked apart and divided up proportionately to
the respective contributions of the husband and wife, the husband
being credited with the whole of his earnings and the wife with the
whole of her dividends.

I don’t believe that once a joint pool has been formed, it ought to be
and can be dissected in any such manner.

In my view, the husband’s earnings/salary when the spouses have

a common purpose and pool their resources, are earnings made on
behalf of both parties and the idea that years afterwards, the
contents of the pool can be dissected by taking an elaborate
account as to how much was paid in by the husband/the wife is
quite inconsistent with the original and fundamental idea of a joint
purse. The money which goes into the pool becomes joint
property. The husband if he wants a cloth, draws a cheque to pay
for it and the wife if she wants any household keeping money draws
a cheque and there is no distraught about it.
Note:

1. There must be funds intended for the use of both spouses

from which either may withdraw money/deposit.

2. Where both spouses contribute to the fund, the intention of

common purse will be imputed to the parties in the absence
of an agreement to the contrary.

But where the fund is denied from the earnings of only one spouse,
this presumption will not arise as a general rule, but it’s a question
of fact whether the account is to remain as his/her exclusive
property or whether there was an intention to establish a common
fund.

HERROD V. TESTIER [1937] 2 ALL ER 237

RE-BISHOP (1965)1 ALL ER 241/(1965) CH.450

3. Saving from Household property

BLACKWELL (1943)2 ALL ER 210

Court held that if the husband supplied his wife with house
keeping allowances out of his own income, any balance and
property bought with the allowance prima facie remains the
husband property in the absence of any evidence of a gift
from the husband.

However, DENNING J in;

HUDDINOTT V. HUDDINOTT (1949) 2 KB 406

(dissenting)

Observed that the position in BLACKWELL’S case might

work an injustice for it took an account of the fact savings
from the house keeping money were as much due to the
wife’s savings skill and economy as a housewife.

In England this position has been recognized i.e the skill and
economy in making savings may give the wife an interest in
property and such property acquired from allowances given
by the husband for household expenses shall belong to the
parties in equal shares.
 RIMMER V. RIMMER (1953) 1 QB 63

[Married Women’s Property Act] – S.17 of the Act – created

a summary jurisdiction in court to hear any question between
husband and wife as to the title and possession of property
and allowed the judge to make such order with respect to the
property as he thought fit.

In the case (court) held that where it’s not possible for a
court to identify the precise contributions made by partners
to a property, the court may view that “they will not
necessarily be equal but may be held so where the
conclusion accords with the broad merits of the
respective claims or with what is fair and reasonable
when there is some difficulty or uncertainty in assessing
the contributions”.

4. Wedding gifts

Whether a gift belongs to one spouse alone or both of them

is a question of the donor’s intention. With respect to
wedding presents, its reasonable to assume that in the
absence of any evidence to the contrary, the husband’s
friends and relatives intended to make the gifts to him and
the wife’s intended to give the gift to her.

SAMSON V. SAMSON (1960)1 WLR 190/ ALL ER 653

KELNER V. KELNER (1939) P. 411 (1939) 3 ALL 957

Here, £1000 was deposited by the wife’s father at the time of

the marriage in a joint bank account of the spouses.

It was ordered that the amount be divided equally between

the parties.

Court stated inter alia that spouses subsequent conduct may

turn a gift to one of them into joint property.

SEPARATION AND DIVORCE

Suspension of Marital obligations/separation

 This can be in 2 ways –

a) Mutual agreement
b) Court order/judicial separation

a) Mutual Agreement

Under this arrangement, the parties mutually agree to suspend their

marital obligations for such terms as agreed upon. The agreement is
reduced into uniting and it usually provides for the following;

i) That the parties agree to live as if unmarried.

a. That they agree not to molest each other during the period of
separation i.e Non molestation clause.
b. Who is to remain in the matrimonial home and who is to leave.
c. Custody of children and the rights of the non-custodial parent.
d. Maintenance of the wife and children during the period of
separation.
e. Any other issues that the parties may wish to provide for e.g
property/joint bank accounts etc.
f. Dum casta clause – chaste life – faithfulness.

 Read copy of separation agreement

These agreements are legally recognized and enforceable once

properly drawn up; and once it is in place, one of the parties can’t be
heard to complain.

In FEARTON V. EYLESFORD (1884) 14 QB 792, the parties had a

separation deed, and one of the conditions was that the husband was to
take out alimony for himself and the wife.

There was a provision that the wife shouldn’t molest the husband during
the period. The wife then committed adultery and got a child. The
husband stopped paying alimony arguing that she had breached the
non-molestation clause.

Court held that adultery by the wife didn’t invalidate the separation deed.
The mere fact that the wife had committed adultery didn’t constitute the
breach of a covenant not to molest her husband.

Court further noted that these two clauses were independent. On what
amounts to a breach of a non-molestation clause, Court noted that it
 must be an act done with intent to annoy someone and does in fact
annoy.

FEARTON was therefore more concerned with the interpretation of this

clause – on non-molestation.

Judicial Separation

Besides mutual agreement, there is also judicial separation as

provided for under S.14 the Divorce Act Cap.249.

Grounds for judicial separation under section 14.

A husband or wife may apply by petition to the court for a judicial separation
on the ground of cruelty, adultery, or desertion without reasonable excuse
for two years or upwards, and the court, on being satisfied that the
allegations of the petition are true, and that there is no legal ground why the
application should not be granted, may decree judicial separation
accordingly. Three grounds are provided for upon which judicial separation
may be based; i.e Adultery, or Cruelty or, Desertion without reasonable
case for 2 or more years.

The above grounds are available to both parties and there is no requirement
for all the three ground to exist. Once the order has been granted, then
marital obligations are suspended, and under S.16 of the Divorce Act during
separation, the wife will be considered as unmarried for purposes of
contract, legal liability; and the husband can only be liable if she is entitled
to alimony which he has failed to pay; in which case the wife may pledge
the husband’s credit.

In GAKWAGU V. GASENGAIRE (1977) HCB 22, Court held that under

S.15 of the Divorce Act (now S.14) judicial separation may be granted on
the grounds of cruelty, adultery or desertion without reasonable excuse for
two years or more.

There is no provision in the Act as to what ought to be done with matrimonial

property after parties are judicially separated. All there is are provisions for
property that a wife may acquire after the separation.

Section 15. Property of wife after judicial separation.

Where judicial separation has been decreed under this Act, the wife shall, from the
date of the decree, and while the separation continues, be considered as
unmarried with respect to property of every description which she may acquire or
which may come to or devolve upon her, and that property may be disposed of by
her in all respects as if she were an unmarried woman, and on her decease, if she
dies intestate, shall go as it would have gone if her husband had then been dead;
but if she again cohabits with her husband, all property to which she may be
entitled when that cohabitation takes place shall be held to her separate use,
subject, however, to any agreement in writing made between herself and her
husband while separate.

Section 16. Contracts, etc. of wife after judicial separation.

Where judicial separation has been decreed under this Act, the wife shall, while
the separation continues, be considered as an unmarried woman for the purposes
of contracts, wrongs and injuries, and of suing and being sued in any civil
proceedings, and her husband shall not be liable in respect of any contract, act or
costs entered into, done, omitted or incurred by her during the separation; except
that—

(a). where alimony has been decreed or ordered to be paid to the wife upon the
judicial separation, and it is not duly paid, the husband shall be liable for
necessaries supplied for her use; and

(b) Nothing in this Act shall prevent the wife from joining at any time during the
separation in the exercise of a joint power given to herself and her husband.

Section 17. Petition to reverse decree of judicial separation.

(1) A husband or wife upon the application of whose wife or husband, as the case
may be, a decree of judicial separation has been pronounced, may at any time
thereafter present a petition praying for the reversal of the decree on the ground
that it was obtained in his or her absence, and that where desertion was the ground
of the decree there was reasonable excuse for the desertion alleged.

(2) The court may, on being satisfied of the truth of the allegations of the petition,
reverse the decree accordingly.

The parties are free to resume cohabitation whenever they find it necessary, and
the marriage continues. They are not under an obligation to uniform court.

The resumption of cohabitation will officially end the separation with the exception
of clauses which may apply to cohabitation.

NICOLE (1887-90) ALL ER 497

This case dealt with the effect of resumption of cohabitation on a separation

agreement.

Court held that a renewal of cohabitation will mean that separation has
come to an end and this will normally depend on the language of the
agreement.
In KIRK V. EUSTACE (1937) ALL ER 175, the wife was claiming for a
monthly sum which she was entitled to after a separation deed or
agreement had been made. The executors argued that this obligation
ceased on the death of the husband.

Court held that the wife was entitled to the sum during her lifetime because
that was the wording in the agreement.

NOTE:

For the agreement to come to an end, Court will look at the wording of the
agreement to determined this.

In R V. MILLER (1954) 2 QB 282, the issue was whether the husband can
rape his wife during separation?

The wife had left her husband in 1952, and didn’t apply for an order of
judicial separation and there was no separation agreement in place.

A year later, she petitioned for divorce and before the petition was heard,
the husband forced her to have sex with him. He was charged with the
criminal offence of rape and assault.

It was submitted that there was no case to answer because under common
law, marriage implied consent to sexual intercourse.

It was held that the mere fact that the wife had left the husband and
petitioned for divorce didn’t amount to revocation of consent impliedly given
at marriage. Therefore he was not guilty of rape but assault and that
although he had a right to marital sexual intercourse, he was not entitled to
exercise it violently.

RUHARA V. RUHARA (1976)

Court granted judicial separation on the basis of cruelty although the wife
initially wanted to terminate the marriage. Her ground of adultery was struck
off because her case was not properly proven.

Judicial separation can be granted at any time after the marriage, whereas
divorce is subject to at least 3 years – 3 year rule.

AB V. CD 1955 18 KRL 200

 On the rationale of a three year rule, Court said that the intention of
legislation was to moderate rush conduct and prevent the spouse from
rushing out of a considered matrimonial relationship and forbid the
presentation of a petition unless there were grave exceptional conditions.

READ: EDGAR V. EDGAR (1980) 3 ALL ER

HYMAN V. HAYMAN (1929) AC 601

DISSOLUTION OF MARRIAGE + DIVORCE

1. Death –

This means that the marriage has completely come to an end.

Divorce in Uganda is governed by the Divorce Act Cap. 249. S.1 (a)
provides that nothing in the Act shall authorize the making of any
decree of dissolution of marriage unless the petitioner is domiciled in
Uganda at the time when the petition is intended.

THORNHILL V. THORNHILL

THAN HILL V. GIGGON – Court held that in a divorce case, the petitioner must
prove marriage, domicile and grounds for divorce in addition to the fact that there
was no condonation – which is a defence available in addition to connivance.

Read SHELDON V. SHELDON

NORMAN V. NORMAN

In explaining S 4(i), Court said that given the natural and ordinary meaning, the
words used in S 4(i) of the Act seem to state that the husband could only petition
for divorce on the ground that his wife had committed an act of adultery.

The head note reads “Grounds for Divorce”, therefore, the words are very clear
and cannot be considered as giving the husband any other ground for petitioning
for divorce in tort.

The Judge went on to say that if the legislature intended to avail the husband with
other grounds that are open to the wife in S 4(2) “ I don’t see why the legislature
would not have said so”.
S .4(2) lays down the grounds upon which a wife can petition for divorce i.e;

a) Her husband has changed his profession of Christianity to the profession

of some other religion and gone through a form of marriage with another.

b) Has been guilty of:-

(i). Incestous adultery
ii) Bigamy with adultery
iii) Marriage with another woman with adultery
iv) Rape, sodomy or bestiality
v) Adultery coupled with cruelty
vi) Adultery coupled with desertion without reasonable excuse for
two or more years.

UGANDA WOMEN LAWYERS (FIDA) V. AG & ANOR.

In practice, the argument has been raised that S.4 of the Divorce Act perpetrates
unequal treatment because for women to divorce, they must couple their grounds
e.g. Adultery and cruelty.

This law has been described as discriminatory because men can petition on the
grounds of adultery alone. It has also been argued that S.4 is against the
fundamental rights of individuals found in the UN Declaration of Human Rights
(1948).

UDHR states that a man and woman are entitled to rights in marriage and at its
dissolution. This article has been incorporated in Article 31 of the Ugandan
Constitution.

It should be noted that the Divorce Act sets out grounds for divorce but doesn’t
define them and the courts had to resort to case law for definitions and these vary
in many instances.

For the case of the husband after establishing the ground of adultery, the S.5
requires him to name the co-respondent unless he has been excused by court on
the following grounds:-

a) That the respondent is leading the life of a prostitute and he knows of no

person with whom adultery has been committed.
b) That he does not know the name of the alleged adulterer though he made
due effort to recover it.
c) That the alleged adulterer is dead.

However, there is no such requirement on the part of the wife.

Adultery

Adultery was defined by ODOKI J in VERONICA HABYARIMANA V. PERFECT

HABYARIMANA 1980 HCB as; “Consensual sexual intercourse during the
subsistence of the marriage between one spouse and a person of the opposite sex
not being the others spouse. It is sexual intercourse between two persons of whom
one or both are married but are not married to each other.”

Since consent is of the essence when relying on adultery as a ground for divorce,
if the married woman is raped, she does not commit adultery.

However, in REDPATH V. REPATH (1950) 1 ALL ER 600 , the burden of proof

of lack of consent is on the woman since the question as to whether or not she
consented to it is peculiarly within her knowledge.

If the husband is guilty of rape of another person, then he is guilty of adultery, this
position was articulated in the case of LONG V. LONG (1980) P.210. since it is
not for the alleged adulterer to confess adultery as such, it is normally deduced
from the conduct of the parties and from circumstantial evidence that tends to
establish it e.g if there is evidence of visiting hotels, brothels, living rooms, hotels
receipts etc.

These issues were discussed in RAPSIN V. RAPSIN (1953)2 ALL ER the issue
was whether evidence of a hotel receipt, register and a hotel waitress was
sufficient to prove that there was adultery.

Court held that where there was no evidence of a background of an adulterous

association, Court wasn’t prepared to make a finding of adultery. Where hotel bills
and a register were produced and the hotel witness called to give evidence; but in
the circumstances of the present case, court was satisfied that the husband had
committed adultery and the wife was entitled to a decree.

PRESTON JONES V. PRESTON JONES (1951) 1 ALL ER 124

HADLUM V. HADLUM

The husband, a serving soldier having last cohabited with his wife went overseas.
The wife gave birth 345 days after the husband had left her. In a petition for divorce
by the husband on grounds of adultery that the length of the pregnancy was
abnormal and that there was other evidence of proof of adultery were rejected by
court.

Medical evidence was given that it was not impossible for the husband to be the
father of the child. The issue was whether the abnormal period of gestation (340
days) was evidence that the wife was adulterous. Court held that it could not infer
that adultery had been committed.

What Constitutes Adultery

Penetration – This was defined in DENIS V. DENIS (1955) ALL ER 51 - Court

held that to constitute adultery as a ground for divorce, there must be penetration
of the female by the male organ, and although the act of sexual intercourse need
not have been complete yet an attempt to commit adultery, penetration not having
taken place must be distinguished from adultery and is not itself a sufficient ground
for divorce – where a man and woman are attached to each other, take off the
greater fact of their clothing that there will in most cases arise a presumption of
adultery.

In the instant case, the inference was rebutted because at the time, the two parties
were together on the bed. The man was impotent and was unable to penetrate
the woman – i.e adultery can’t be proved unless there was some penetration.

However, there need not be full penetration to constitute adultery, and for it to take
place, it must be with the person of the opposite sex although it can take place
even if the marriage has not been consummated.

READ: MACKLENA V. MACKLENA

If the woman gets herself artificially inseminated by another man’s sperm, she
does not thereby commit adultery.

Standard of Proof of Adultery

In HABYARIMANA V. HABYARIMANA (1980) HCB 139

Court held that it is well settled that where there is an allegation of adultery, it must
be proved to the satisfaction of the court. The evidence must carry a high degree
of probability.

In Uganda where adultery is a criminal offence, there is a stronger reason for

demanding a higher standard of proof than in any other civil proceedings.

IN GLYDE V. GLYDE (1966) ALL ER 524 which was adopted in

HABYARIMANA, the House of Lords held unanimously that the words ‘is satisfied’
don’t mean satisfied beyond reasonable doubt.

In RUHARA V. RUHARA (1977) HCB 86, the wife petitioned for divorce on
grounds of adultery and cruelty. Her evidence was that in November 1975, she
returned home and found the man in bed with her house girl. The witnesses denied
knowledge of an act of adultery.
Court held that the basic rule as established by case law is that in cases of adultery,
the burden of proof lies on the petitioner, and it’s a heavier burden than that which
lies on the party to an ordinary civil action. Adultery must be normally proved
beyond reasonable doubt although the standard of proof is not as high as is
required in criminal cases.

In proving adultery, the court will normally look for corroboration because direct
evidence apart from that of the petitioner is seldom available.

Adultery may be inferred from the fact that the parties spent the night or part of it
in the same room, but court is not obliged to draw such an inference and if no
further evidence is available it may dismiss the petition in that respect.

In the instant case, since there was lack of corroborative evidence to support the
petitioner’s evidence adultery was not sufficiently proved, and without proof of one
of the two offences pleaded, the petition for divorce was dismissed.

2. CRUELTY

In Uganda, only the wife can use cruelty as a ground for divorce. However, she
must couple it with adultery.

Before 1962, cruelty had to be imputed on the respondent/husband and in addition,

the intention of the party complained of had to be proved. After 1964, proof of
intention ceased to be important, hence the 1964 test was an objective one, but
after that it became a subjective test depending on the circumstances of each
case.

There are 2 important cases which contributed to the changing of the tests.

In COLLINS V. COLLINS (1964) AC 44, the House of Lords held that the
presence of an intention to injure on the part of the spouse charged is not an
essential ingredient in cruelty, but where courts plainly proved that the spouse’s
normal mind and health had been reduced to ill health by the inexcusable conduct
of the other spouse although he knew the damage he was doing or be it that didn’t
intend to injure the spouse, but closed his mind to the consequences, such conduct
amounted to cruelty.

The same principle was discussed in WILLIAMS V. WILLIAMS (1962) ALL ER

994

According to the two cases, one act may amount to cruelty, but before, a person
had to prove at least two acts.
This principle was adapted in E.A in 1965 in COLAROSSI V. COLAROSSI (1965)
EA 132.

The Italian couple living in Uganda had financial difficulties which often resulted in
quarrels – one time, there was a bitter quarrel in which the husband threw a beer
glass in the wife’s face, and held his hands close to her face saying “I would like
to crash you” but he didn’t.

He threatened to kill his wife if she slept in his room that night, the wife left the
matrimonial home and petitioned court for judicial separation on the ground of
cruelty.

Court stated that an essential ingredient of every petition based on cruelty is that
the party seeking relief must prove actual or probable injury to life, or health – i.e
there must be something that will make continued cohabitation a danger.

CRAB J noted that the conduct complained of was one of those occasional out
bursts of temper that was part of reasonable wear and tear of their marriage, and
having regard to the temper character and habit of the spouses and all the
circumstances of the case, it was not so serious to amount cruelty.

In MUSINGA V. MUSINGA (1993) KLR 160, it was held that to prove cruelty, the
respondent must be shown to have acted to the petitioner in such a way as to
render future cohabitation more dangerous to her life or mental health.

In BAKER V. BAKER (1955) 3 ALL ER 193, persistent drunkenness has been

held to amount to cruelty, the parties had been married for 11 years. The husband,
a drunkard caused his wife great mental distress by his persistent drinking despite
warnings both from her and others that she would not be able to stand it.

In the last few months of their marriage, he became worse and occasionally used
violence towards her. The wife who was on the verge of a nervous breakdown left
the matrimonial home and petitioned for divorce.

Court held that the husband’s conduct amounted to cruelty and the wife was
entitled to a decree. This case can be distinguished from KASASA V. KASASA
(1973) HCB 148 where the Russian wife petitioned court for divorce on grounds of
adultery coupled with cruelty. She pleaded that the husband used to drink a lot
and when he came back home drunk they quarreled resulting into the husband
beating her up.

He also used to tell her to take away the Bazungu children. The wife left the
matrimonial home.
Court held that the evidence adduced didn’t establish cruelty as defined by law.
The petitioner must prove actual or probable injury, and the acts complained of as
constituting cruelty best amounts to the normal wear and tear of marriage life.

Other examples of cruelty include:

Constant nagging, fault finding, transfer of venereal diseases, coitus interuptus and
the refusal to have children by either spouse.

In FORBES V. FORBES (1955) 2 ALL ER 511, Court held that if a wife

deliberately and consistently refused to satisfy her husband’ natural and legitimate
craving to have children and the deprivation reduces him to despair and affects his
mental health, the wife is guilty of cruelty.

In KROTT V. KROTT (1955) 2 ALL ER 305, Court held that the husband’s
conduct viewed as a whole amounted to cruelty and further the refusal by the
husband to allow his wife have children and the practice of coitus interruptus in
disregard of whether he injured her health or not amounted to cruelty even though
the husband had not been warned by doctors of the potential results of unnatural
practice.

In WHITE V. WHITE (1948) 2 ALL ER 151, in spite of the wife’s protest, the
husband constantly practiced coitus interrupters and there was medical evidence
that the wife suffered in health.

Court held that the husband’s conduct which he knew was resented by and was
undermining the wife’s health, constituted cruelty in law and the wife was entitled
to a decree of dissolution.

The same was held in CACKETT V. CACKETT (1950) 1 ALL ER 677.

Refusal to intercourse also amounts to cruelty –

In SHELDON V. SHELDON (1966) ALL ER 257, the husband and wife lived
together for 8 years. His work took him to Scotland for 1 year. After his return,
they lived together for another 6 years but never had sexual intercourse with her
although they slept together and she asked him to, herself wanting a child; and as
a consequence she became ill and the husband knew that his refusal was affecting
her health. This was explained to him by the doctor, but he persistently refused
and the wife petitioned for divorce on the ground of cruelty.

Court held that the husband’s persistent refusal to intercourse over so long a
period without excuse causing grave injury to his wife’s health amounted to injury
on his part. Accordingly a decree was granted.
In EVANS V. EVANS (1955) 2 ALL ER 788, 12 years after marriage, a wife
refused to intercourse with her husband despite the fact that he tried to. The wife
also ceased to be willing to go out to the cinema or leisure places which were the
kind of outings they had had together before.

The husband left the matrimonial home in state of anxiety and depression resulting
from his marital problems. He petitioned for divorce on the ground of cruelty.

Court held that refusal of intercourse can amount to cruelty if it’s unjustified.

Note: Just like in adultery, corroboration is always required as a matter of

prudence.

4. DISERTION

Desertion is available to the wife and must be coupled with adultery or marriage
with another woman and it must continue for at least two years without a
reasonable excuse.

Elements

1) Departure or withdrawal from society of the other spouse.

2) Intention to depart for at least two years – Aminus
3) The deserter must have no reasonable excuse
4) The person deserted must not have consented to it.

In PATEL V. PATEL (1965) EA 560, the wife had left the matrimonial home on
the grounds that the husband had refused to take her to the cinema and didn’t go
to meet her at the Railway Station when she arrived in Nairobi.

Court dismissed the petition and on appeal, court held that the burden of proof is
on the petitioner to prove that his wife had left the home without his consent and
with no intention of returning. Once this is done, the burden of proof shifts to the
wife to show that there were reasons which absolved her.

The matters raised by the wife were not grave and weighty and therefore were
unhappiness was insufficient.
Court further noted that a bonafide offer to return made before the filling of the
petition will determine desertion. On the evidence, the wife had failed to discharge
the onus on her of proving an offer.

In FREDIE V. FREDIE (1944) EA CA 42, a wife refused to join her husband where
he had gone. One year later, she accepted him in the home to see the children.
They shared meals, but occupied separate bedrooms.

Evidence was adduced that the wife’s attitude had never changed. However, she
was willing to share the house but without sexual intercourse, although with a
possibility of resuming it.

Court held that the husband’s stay in the wife’s home in the circumstances didn’t
constitute such a thing together as would operate in law to break the continuance
period of desertion.

Further, court stated that an offer by the guilty spouse to return condition that there
won’t be resumption of marital intercourse would be unreasonable and would not
be unarmed to desertion the wife was held to be in desertion.

SYNGE V. SYNGE (1900) - the parties were living separately and could have
resumed cohabitation if the husband had complied with the wife’s wish that they
should resume cohabitation on terms that there should be no sexual intercourse.

It was held that the husband had good cause to live apart from the wife if she
maintained her condition of life together without intercourse.

HUTCHINSON V. HUTCHINSON

The husband who was living apart from the wife agreed to resume cohabitation on
condition that there would be no section intercourse, the wife told him she wasn’t
prepared to live with him on that basis and she applied for judicial separation on
grounds of desertion.

Court held that the husband’s insistence on the refusal of sexual intercourse as a
condition for resumption of cohabitation constituted desertion by him. Accordingly,
the wife was entitled to a matrimonial order.

Constructive desertion

Constructive desertion is a creation of case law. This is a situation where one of

the spouses conducts himself/herself in such a way as to render it impossible for
the other spouse to continue living together in the matrimonial home.
FULLFORT V. FULLFORT (1923) P 18 – it was held that desertion is not
necessarily withdrawal from a place but from a state of things. The test is whether
the spouses are still living together as spouses.

WINNAN V. WINNAN (1948) ALL ER 862, the wife had many cats within the
house. She would sit with them and then sleep in the same bed with them. The
husband felt that he could no longer stay in such a house.

Court held that since the lady preferred the company of her cats to her husband,
she had constructively disserted him.

In BARTHELOMEW (1952) 2 ALL ER 1035 – the husband went to war. On return

he found the wife, children and the house in a dirty state. He asked the wife when
she last had a bath, and she replied; “ I don’t remember” and she didn’t seem
willing to have one.

The husband cleaned up the children and house, but the wife refused to make any
effort. Court held that she was in constructive desertion with her husband.

In WITHERLY V. WITHERLY, Court held that where the spouses are living in the
same matrimonial home, refusal to have sexual intercourse is constructive
desertion on the part of the spouse who does so.

BARS TO DIVORCE

Procedure in divorce

Before divorce can be granted, it must be established that the marriage exists.
There can be no matrimonial offences unless matrimony can be proved.

Therefore, the first step during proceedings is proof of marriage and this is normally
done by attaching a certificate of marriage to the petition;

A certificate of marriage gives the preliminary evidence of marriage. If it can’t be

obtained a certified copy of the entry of the Marriage Registration book will be
evidence of a marriage.

Once the petitioner has proved marriage and the matrimonial office, the court must
in addition inquire whether there is a bar to granting the said divorce. These may
either be absolute or discretionary bars.

Absolute Bars

Before granting the divorce, S.6 of the Divorce Act provides that court shall inquire
into whether the petitioner has been in any manner accessory to or conniving at
the going through of the said form of marriage or the adultery complained of or has
condoned the same and shall also inquire into any counter charge which may have
been made against the petitioner.

Under S.7, the petition shall be dismissed if the above conditions are in the
affirmative.

1. Collusion
This means that the petitioner worked to set up evidence with the intention of
obtaining a divorce. The petitioner must plead and prove that they have not in
any way colluded to obtain the divorce. S.7 makes it mandatory for Court to
dismiss the petition if it’s shown that the petitioner condoned, connived or
colluded with the act presented.

COMBE V. COMBE (1964) EA 361 , the wife petitioned for dissolution of

marriage arguing that the respondent had been persistently cruel to her
physically and mentally. The respondent filled a reply and instructed his
advocate not to defend the case on the ground that he didn’t wish his wife to
be subjected to cross-examination.

On the issue whether or not there was collusion, causing the husband to alter
his attitude with regard to active defence of the case, Court held that there was
no evidence to suggest collusion –

Read
HEAD V. COX (1964) 1 ALL ER 1776

NOBLE V. NOBLE & ELLIS (1954) 1 ALL ER 577

2. Connivance

This means that the petitioner has authorized a matrimonial offence and this is
more in conduct than in words or that the petitioner has made the circumstances
conducive for the respondent to commit the matrimonial offence.

WOODBURY V. WOODBURY (1948) 2 ALL ER 634 - the wife discovered that

the husband had been carrying on an adulterous association with their child’s
maid. She then developed a nervous hysterical state as a result of the shock of
discovery. She wrote to the husband and his mistress a letter which would in their
literal meaning amounted to a license to the husband to continue his adulterous
association which the husband in fact did and in a petition on the ground of
adultery, it was admitted but was contended on behalf of the husband that the wife
had connived at his adultery by reason of the letter by the wife on the first discovery
of the adultery.
Court held that the wife wouldn’t be held guilty of connivance on the letter as a
result of the discovery of adultery but her conduct as a whole; over a reasonable
period of time there was no evidence that the wife willingly consented to any future
adultery.

In GIBBS V. GIBBS, the husband took money from a man who was ‘sleeping’
with his wife and later petitioned for divorce, and joined the man as a
correspondent.

It was held that he had connived at adultery.

READ - GORST V. GORST (1952) ALL ER

Wife forgave the husband the first time she found him in adultery – Court held
against connivance on the second time.

Read .

RICHMON V. RICHMOND (1952) 838

MANNING V. MANNING (1950) 1 ALL ER 602 -

DOUGLAS V. DOUGLAS (1959) 2 ALL ER 748

In DOUGLAS, Court recognized that if you lay a trap to confirm suspicion, that’s
not connivance.

READ - POULDEN V. POULDEN & ALEXANDER (1938) 1 ALL ER 508

Connivance can also be committed through an agent. Court held that if you employ
an agent to get evidence of adultery and if such an agent in the course of his
employment connived at adultery, there is a bar from obtaining a remedy.

Court further stated that divorce for adultery is granted because of the intolerable
injury to marriage which that offence constitutes, but if it has been deliberately
promoted by the petitioner or an agent employed to get evidence, the petitioner
can’t be heard to complain of the injury.

GODFREY V. GODFREY (1964) ALL ER 154

Court said there is no absolute rule of law. Once connivance, always connivance.

3. Condonation

This refers to forgiveness knowing that a wrongful act has taken place, but the
petitioner goes ahead and forgives it. Therefore, if the respondent commits a
matrimonial offence and the petitioner ignores it, he can’t later seek to use it as a
ground for divorce.

S.9 of the Divorce Act specifically provides that adultery shall not be deemed to be
condoned unless the petitioner pleads his or her own matrimonial offences.

In BUTCH V. BUTCH the wife discovered that her husband was in association
with another woman and in an effort to keep the marriage intact, she told the
husband an isolated act of adultery between herself and a Canadian man in 1945.

The husband left the matrimonial home and petitioned for divorce on the ground
of the wife’s adultery with a Canadian. She pleaded condonation on the issue as
to whether the husband had at any one time before the wife’s revelation had the
requisite knowledge of the offence.

It was held that there had been no condonation because the wife’s confession, the
husband had not been aware of any facts with the condonation therefore,
condonation after the wife’s confession couldn’t be inferred.

In HANDERSON V. HANDERSON (1944) 1 ALL ER 44, the wife admitted to the

husband that she had committed adultery with the co-respondent and promised
nothing to do with the co-respondent in future. She was forgiven by the husband
who had Sexual 1ntercourse with her; she promised never to do it again. She
withdrew her promise the following morning and the husband left the house.

It was contended that in the circumstances, there was no effective condonation of

adultery. Court held that adultery had been condoned by the husband.

It’s only fraudulent in statements of facts and not assurances as to future conduct
which may remove the disabling conduct of condonation. Court further said that
condonation isn’t a contract. It’s the overlooking of wrongs accompanied by action
on the part of the aggrieved spouse which shows that they are really forgiven.

Read

CHRISTINA HAMLSI V. OMARI (1963) EA 463

MUSINGA V. MUSINGA

Discretionary bars to Divorce

They are discretionary in the sense that court may still grant a divorce even if the
discretionary bar exists. This means that the petitioner is guilty of matrimonial
office, but he or she applied to court to exercise its discretion and grant a decree
for divorce.
Conditions that may amount to discretionary bars

These are provided for in S. 8 (2) of the Divorce Act.

They include:

a) unreasonable delay in presenting and prosecuting the petition

b) that the petitioner made it possible for the respondent to commit adultery
e.g. by willfully separating himself /herself from the respondent before the
adultery complained of or is guilty of willful neglect.
c) That the petitioner is guilty of cruelty towards the respondent.
d) Willful separation without reasonable excuse.

If any of the above is proved to court, the court may or may not grant a petition.

In CARR V. CARR, the wife petitioned for divorce on the grounds of her
husband’s adultery. The petitioner made a cool and frank confession of her own
misconduct subsequent to her husband leaving her. Court exercised its discretion
and a decree nisi was granted.

In PRINCE V. PRINCE, 20 KRL 21, the wife was living in the U.K. She petitioned
on grounds of her husband’s adultery. By the petition, the respondent had been
living with a woman known since 1936 but the petition was not filed till 1942. The
reasons were that there were difficulties in obtaining satisfactory evidence, postal
delays in correspondence between England and Kenya, out break of war and she
was not even in the financial position to proceed with the matter until the question
of maintenance was settled.

On the issue whether there was unreasonable delay to file the petition, it was held
that each question on what is unreasonable delay in presenting or prosecuting a
petition must be dealt with on its own facts and merits. Taking into consideration
all the circumstances of this case, the poverty of the petitioner, the long draw out
correspondence and later the difficulties of communicating owing to war, the delay
although great was not unreasonable.

Read

STERJEN HOLM

HYDE V. HYDE –

S.34 of the Divorce Act, S.120 Evidence Act , S.35 of Divorce Act.

Orders that Court may make on granting a decree of divorce

 1. Decree nisi

This is provided for under S.37 of the Act and will be made according to satisfaction
of court that the grounds alleged exist. This is an interim order and after 6 months,
a decree absolute may be granted.

The gap between nisi and a decree absolute is a cooling or waiting period intended
to allow a party to reconsider his/her position. It’s where fresh evidence may be
adduced to bar the granting of a decree absolute on the grounds of collusion or
any reason of material fact not having been brought before court.

READ S.37 (2)

Under S.37 (3), if no evidence is adduced, then the decree will be made absolute.
However, S. 37(3) of the Act provides that the petitioner must move court within a
reasonable time that the decree nisi be made absolute. Failure to do so may result
into dismissal of the petition.

In NEOGY V. NEOGY (1967) EA 664, Court held that there is no power in Uganda
for court to abridge the 6 months period provided by the Divorce Act between the
decree nisi and the decree absolute.

In MORRIS V. MORRIS (1942) KLR 23, the applicant stated that he was a sick
man and so had to leave the colony for treatment. There was a lady willing to
marry him and accept the responsibility of looking after him, and becoming a
guardian of his son in the event of his death.

Court said that he had shown cause for granting an order to bridge the time
between the decree nisi and decree absolute.

2). Damages – Under S. 21(i) of the Divorce Act, the husband may by petition claim
damages from any person on the ground of his having committed adultery with the
wife of the petitioner. This action may be brought in a separate petition in a petition
for dissolution of marriage or for judicial separation.

3). Costs – Under S.22 of the Divorce Act, Court may make an order as to costs
against the co-respondent. The co-respondent may be ordered to pay the whole
or any part of the costs of his proceedings if adultery with the petition’s wife has
been established against him.

However, he may not be ordered to pay costs in the following circumstances:

a) If at the time of adultery, he didn’t know that the respondent was married.
b) If at the time of the adultery the respondent was living apart from the
husband and leading the life of a prostitute.
NOTE - There is no such right available to the wife for damages or compensation
of costs as per S.21 & 22 of the Act.

Read.

FIDA & ONYANGO V. AG

3. Alimony pendent elite - maintenance pending disposal of the suit. This is

provided for under S.23 of the Divorce Act and refers to a sum of money
that court may order the husband to pay to his wife for her maintenance
pending the final disposal of the suit.

4. Permanent Alimony –

This is provided for in S.24 of the Act. The order is made when the decree is
made absolute or when the marriage is dissolved. It’s also made during judicial
separation.

Court will grant money in regard to the following:-

a) The wife’s status or economic standing

b) Husband’s ability to pay
c) Conduct of the parties

This alimony can be in one lump sum or may be paid in installments as court may
deem fit e.g monthly, weekly or annually. It can be paid to the wife or her trustee.

N.B. Under S.25 its revisable according to changes in income.

A husband has no right to alimony.
On the property, where wife is adulterous, ownership of property normally resolved
in favour of children, husband or both.

5) Custody and maintenance of children

Under S.29, Court may make an order for custody, maintenance and education of
minor children during proceedings for dissolution, judicial separation or after a
decree absolute.

The decree absolute can be appealed from under S.28 of the Divorce Act. If no
appeal is made, the marriage is legally dissolved under S.39.

The parties are free to remarry as if the prior marriage had been dissolved by
Death.

Under S.40, no Clergyman under the Church of Uganda shall be compelled to

solemnize the marriage of anyone who’s former marriage has been dissolved due
to his adultery, and can’t be sued or censored for solemnizing or refusing to
solemnize the marriage.

The Divorce law is unsatisfactory in areas most of which include:

a) whether there should be a uniform law for divorce in all marriages.

b) Should the irretrievable breakdown be considered as a ground for divorce.
c) Should the grounds for divorce be the same for both man and woman to
ensure equality at dissolution under Article 31 of the Constitution.
d) Is the 6 months cooling period still relevant?
e) Should the jurisdiction be granted to lower courts to handle divorce matters.
f) Should we have a simplified procedure for obtaining a divorce as opposed
to going to court.
g) Should there be alimony at all, and if yes, should it be paid off by the
husband or vice versa as is the case in Tanzania.
h) Should the rules of costs and damages awarded to the husband on the
wife’s adultery be abolished.
i) What property should be considered for purposes of joint ownership
j) Should the time of acquiring the property be considered e.g property
acquired before marriage.
k) Should there be a distinction between a matrimonial home and other
property?

Read SAMSON V SAMSON on property

- property before marriage owned by each spouse
- origin of gifts used to determine ownership.

l) who should remain in the matrimonial home at the dissolution of marriage.

m) Should it depend on the custody of children.

Unlike Uganda, Tanzania has included there reforms in its laws of marriage. They
have abolished the 6 months period between the decree nisi and decree absolute
and adopted the doctrine of irretrievable breakdown of marriage.

In GOMBANILA V. GOMBANILA (1974) TLR 165 Court said that before it grants
a decree of dissolution, it must be satisfied that the marriage sought to be
dissolved, must be broken down beyond repair.

More profession of a matter doesn’t itself entitle a party to a decree of divorce.

A decree of divorce is still a discretionary matter due to public policy

considerations.

In FATU s/o MUSA V. RASHID s/o MOHAKANIC , the husband contracted

leprosy and the wife petitioned for divorce on the ground that this was irretrievable
breakdown of marriage.
Court rejected the argument – that the man had gone for treatment and he was
practically cured.

Further, that the contraction of leprosy doesn’t entitle the other spouse to divorce
because it would set a bad precedent which would encourage husbands and wives
to abandon their spouses in times of difficulty. This is dangerous in terms of
stability of the spouses.

In the Uganda case of WALUSIMBI V. WALUSIMBI Divorce Cause NO. 7/1973,

Court relied on the PRINCIPLES of irretrievable breakdown of marriage.

However, the decision has been criticized because it didn’t follow the laws of
Uganda but foreign law. There is no law in Uganda which allows divorce because
of irretrievable breakdown of marriage and these grounds must be proven for
cases in Uganda.